October 13, 2011

The new garde à vue regime: too many rights or too few?

Six months on from the major reform of the garde à vue (GAV) procedure in France, the detention and questioning of suspects is no less controversial. The number of detentions has fallen, as has the number of confessions and the clear up rate. Both police and lawyers complain of inadequate material conditions, remuneration and personnel. But more significantly, the legal regime itself is severely criticised by lawyers for providing inadequate due process protection - and by police for providing too much. Is this a criminal justice in crisis, or simply the predictable complaints of legal actors on different sides of the criminal justice fence?

As described in previous posts, the case law of the European Court of Human Rights (ECtHR) was the principal driver for change in France, as elsewhere such as Scotland, the case of Salduz v Turkey setting the ball well and truly rolling. In June of this year, the European Union (EU) published the draft Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest. Although it has been opposed by a number of Member States, including France, it provides further indirect pressure towards a stronger role for the criminal defence lawyer.

The figures on suspects receiving legal advice in police stations in France vary across regions. Some reports are of a 50% request rate and then a 50% attendance rate. In Paris, there were around 50,000 GAV between 15 April and 30 September 2011. 28% of suspects requested a lawyer and these were satisfied in 74% of cases - ie around 20% of suspects had a lawyer present.

Assessments of the new procedure report that the number of GAV is down by 200,000, just over one quarter. Although sometimes reported in somewhat alarmist terms, this is not necessarily a bad thing. The huge increase in the use of GAV for even minor offences was one of the reasons for the reform. We also need to look at the statistics a little more closely. The figure of one quarter masks differences in numbers between serious and minor offences. The reform appears to have had the desitred effect, in that the number of GAV in traffic offences has halved. The numbers of GAV in more serious offences have therefore declined by much less than one quarter.

The police complain of the increased paperwork and administration associated with the new reform and insufficient personnel can only make this worse. In January 2010, for example, there were 1,053 administrative posts such as switchboard and reception work, that were being carried out by police officers. However, whilst there may be some extra paperwork for the new GAV regime, there are also savings through reduced numbers. The police report that traffic offences, shoplifting and simple drugs possession cases are more likely to proceed staright to charge without the need for detention and questioning. This is a much more effective and appropriate use of resources - these are cases that should not have been dealt with through GAV in the first place.

Arrangements for providing duty cover differ across the country. Whilst some areas have sufficient lawyers, others find themselves having to cover distances of up to 100km. From the police perspective, this can create additional delay and a concern that fewer cases can be dealt with.

The confession rate is reported to be down by 40% and the police clear-up rate by 2.5%. Predictably, the police claim that more suspects are exercising their right to silence on the advise of lawyers. However, there is no support for this. It is not clear how many of those remaining silent have legal advice; and where they do, silence is not necessarily the result of that advice. My own research in the first years of similar reforms in England and Wales, found that suspects tended to remain silent despite (rather than because of) the legal advice they received. (M McConville & J Hodgson Custodial Legal Advice & the Right to Silence, RCCJ Study 16, 1993). The correlation is not so much that legally represented suspects are silent, but that silent suspects are more likely to request a lawyer.

The police also attribute the falling confession and clear up rate to the fact that they cannot establish a 'relationship' between the suspect and investigator during the GAV. Unfortunately, research suggests that the kind of 'relationship' established between police and suspect in the absence of a lawyer can sometimes be an unhealthy one, in which suspects find themselves pressured to confess. For many, this reform has signalled the end of the culture of confessions as the evidential centre piece. Careful thought needs to be given to ensuring that investigators can questions suspects effectively, whilst avoiding the abuse of power that can follow from equating a confession with 'the truth'.

For their part, lawyers remain dissatisfied with the extent of the April legislation. The GAV reform was the direct result of a ruling by the Conseil constitutionnel, relying on Salduz. As described in earlier posts this was through the QPC (la question prioritaire de constitutionnalité) procedure which provides a relatively rapid response to questions of constitutional importance. Now the new legal regime too has been challenged through this procedure.

Whilst lawyers have access to suspects before and during police interrogation, they claim that this does not enable them to provide effective legal assistance as envisaged by the ECtHR. In order to advise their clients properly, they say that they need access to all material evidence in the dossier relating to the accusation. This will prove very controversial. Clearly, the defence lawyer needs to know the nature of the cases against the suspect if she is to advise properly, but the sharing of evidence and witness statements will need to happen in a way that does not compromise the security of witnesses or othe investigation. It is also interesting to consider what the procedural model is here? Is this an inquisitorial or an adversarial investigation? The ECtHR has made it clear that the defence role should go beyond that of passive observer; her presence is to represent the accused once she is under suspicion. Is the defence present therefore to participate in the investigation? Can and should she also actively represent the interests of the suspect in doing this? Or is her role to begin the more partisan task of preparing the defence case? It seems that France has yet to reconcile the more accusatorial and active defence role required by the ECtHR, with the historical French model of a more centralised judicial enquiry.

Defence lawyers also reject the passive role that has been assigned to them during police interviews. They may be present, but they may not intervene; any questions may only be asked at the end of the interview. Clearly this limits their utility and reduces their role to one of witness rather than participant. In ECtHR terms, it does appear to reduce their ability to provide effective defence assistance - keeping them in a subordinate position in relation to the police.

And finally, lawyers claim that their presence should not be limited to suspects held in GAV, but should extend to other investigative acts. This echoes one of the provisions in the draft Directive that is objected to by Belgium, France, Ireland, the Netherlands and the UK. The draft Directive speaks of the lawyer's presence at procedural or evidence-gathering acts where the suspect would be present. The French objection seems to address the broader issue of the lawyer's participation in the enquiry once a person is a suspect - even if she is not placed in GAV. The argument is that in order to respect the principle of equality of arms, fundamental defence protections should not depend upon physical detention.